Borum v. Swift & Co.

125 Ga. 198 | Ga. | 1906

Fish, C. J.

(After stating the facts.) The agreement for the breach of which the suit was brought was for the sale of merchandise of the value of more than fifty dollars; and, under the statute of frauds, to be enforceable, it had to be in writing. Civil Code, §2693(7). As no provision is made for oral evidence as to part of the terms omitted from the writing, it must, in general, set forth with sufficient certainty the essentials of the agreement. ‘ Of .course a subject-matter is one of the essentials to a valid contract, and it is necessary that it be set forth with such certainty that it can be identified without resorting to oral evidence of the intention of the parties to supplement the terms of the writing as to what the subject-matter is. “Technical accuracy of description is not necessary; but as the entire contract must be proved by the writing, the description must be such as to specify the subject-matter, so that one familiar with such subject-matter can identify it, without further evidence of the intention of the parties direct.” 2 Page on Contracts, §§696, 699, 700. That the subject-matter must be clearly identified in the writing see Smith v. Jones, 66 Ga. 338; North v. Mendel, 73 Ga. 404; Douglass v. Bunn, 110 Ga. 159. In Stewart v. Cook, 118 Ga. 541, the contract provided for the delivery of a certain number of “bales” of cotton, and the evidence showed that the term “bales” was ambiguous and denoted more than one weight, and that the parties had a specified agreement as to what weight was meant. The writing was held to be insufficient to meet the requirements of .the statute of frauds, as it affirmatively appeared that the contract was partly in writing and partly in parol, and the terms of the statute were not met. It seems to be uniformly held that an agreement within the statute of frauds can not be enforced unless the writing, or writings, identify with certainty the terms of sale and the subject-matter. 1 Seed on St. Frauds, §408; Browne on St. Frauds, §385, and cases cited by these authors. The term “ribs,” used in the telegram, is manifestly ambiguous to the general reader, and, according to the testimony of the plaintiff himself, this term, unaccompanied by descriptive adjectives, is also ambiguous to those dealing in the general class of merchandise to which the alleged contract referred. He testified that there are several kinds of “ribs,” which he enumerated, known to the trade. And in order to show the kind and character of meat to which the written offer of the defendant, which he testified he accepted over the telephone, referred, he-had to resort to parol evidence, and to resort to it not for the purpose of showing that the term “ribs” had a definite meaning to dealers in meats, but for the purpose of showing what the particular subject-matter of the agreement was, not as expressed in the writing, but as expressed by the parties in parol. It appears, from his testimony, that the term “ribs” has no definite or specific meaning even among dealers in meats; and when- Borum testifies that he was contracting for dry salt rough ribs, of an average weight of forty to forty-five pounds, it is clear that the telegram did not contain all the terms of the contract; which brings the case clearly within the ruling made in Stewart v. Cook, supra. In that case it was said, “the law requires that the contract of sale shall be in writing (Civil Code, §2693, par. 7) ; by which it of course means the entire contract, with all stipulations and provisions which have been assented to by the parties at the time of the sale. Where some of the terms are in writing and others in parol, the requirements of the statute are not met.”

The plaintiff offered to introduce in evidence various letters and telegrams, which passed between the .agent of the defendant who sent the telegram to Borum and the agent of the defendant having genéral supervision of the defendant’s provision branch houses, some of which letters and telegrams referred to the transaction in question, while others referred to previous negotiations between the parties, from which no agreement was claimed to have resulted. They were all excluded by the court, and their exclusion is complained of in the bill of exceptions. "All that is required [by the statute of frauds], is written evidence of the agreement, and therefore the memorandum may consist of letters written by the party to be charged, to his own agent, or to other third persons. The memorandum may even consist of entries made by the party to be charged, on his or his agent’s books; and entries in the records of a corporation may prove a contract by it.” Clark on Contracts, 83, and eit. While this is well settled, yet as there can be no contract without the assent of both parties, the party relying upon the memorandum to show the terms of the contract must show that he assented to those terms. It is not necessary to show that he assented in writing, but it is obviously necessary for him to show that he did assent. An examination of the letters and telegrams excluded by the court shows that where "ribs” are referred to at all, it is as “dry salt hard short ribs,” which, according to the testimony of the plaintiff, were not the kind that he agreed to purchase from the defendant. So the excluded evidence, if it had been admitted, would not have tended to prove the contract as the plaintiff claimed it to be. For although the written evidence admitted and some of the written evidence excluded, when construed together, might have been sufficient to meet the requirements of the statute of frauds, if the proof had shown that the terms of a contract as expressed in these writings had been accepted or assented to by the plaintiff, yet as they would not have shown the contract to which the plaintiff testified and upon which he relied, the exclusion of this evidence was not harmful to the plaintiff. He could not recover because 'the defendant had failed to comply with an offer, the terms of which were deducible from the telegram admitted in evidence and some of the memoranda excluded from evidence, when, according to his testimony, he did not accept this offer, but a different one.

Our conclusion is that the telegram introduced in evidence did not contain the entire contract upon which the plaintiff.relied, and therefore did not meet the requirements of the statute of frauds; that an action would not lie for a breach of the contract, and that the court did not err in finding for' the .defendant.

Judgment affirmed on main hill of exceptions; cross-hill dismissed.

All the Justices concur.